Exhibit 10.39
AMENDED AGREEMENT
THIS Amended Agreement made as of the 7th day of August, 2001,
by and between Philadelphia Suburban Corporation, a Pennsylvania corporation
("PSC"), and Xxxxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Executive is presently employed by PSC, as its
Senior Vice President - Engineering and Environmental Affairs and also serves as
an officer of Philadelphia Suburban Water Company ("PSW"); and
WHEREAS, PSC considers it essential to xxxxxx the employment
of well-qualified, key management personnel, and, in this regard, the boards of
directors of PSC and PSW recognize that, as is the case with many publicly-held
corporations such as PSC, the possibility of a change of control of PSC may
exist and that such possibility, and the uncertainty and questions which it may
raise among management, may result in the departure or distraction of key
management personnel to the detriment of PSC and PSW;
WHEREAS, the boards of directors of PSC and PSW have
determined that appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of key members of PSC's and PSW's management
to their assigned duties without distraction in the face of potentially
disturbing circumstances arising from the possibility of a change of control of
PSC, although no such change is now contemplated;
WHEREAS, in order to induce the Executive to remain in the
employ of PSC, PSC and PSW, for which certain of the employees of PSC, such as
the Executive, provide key executive services, entered into an Agreement,
effective as of January 1, 1997, to provide that the Executive would receive
certain compensation in the event his employment with PSC or PSW is terminated
subsequent to a "Change of Control" (as defined in Section 1 hereof) of PSC as a
cushion against the financial and career impact on the Executive of any such
Change of Control; and
WHEREAS, the agreement was amended effective as of
February 1, 1999, to clarify the term of the Agreement; and
WHEREAS, PSC and PSW wish to amend and restate the Agreement
at this time to clarify certain rights of the Executive, incorporate the
amendment that was made to the Agreement effective as of February 1, 1999, and
to make other desirable changes; and
WHEREAS, PSW is willing to enter into this Agreement with PSC
in light of his role in the management of the affairs of PSW or its
subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, the parties hereto agree that the Agreement shall be
amended and restated to read as follows:
1. Definitions. For all purposes of this Agreement, the
following terms shall have the meanings specified in this Section unless the
context clearly otherwise requires:
(a) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) "Base Compensation" shall mean the average of the
total of cash base salary and annual bonus paid to, and dividend equivalents
under the Equity Compensation Plan accrued for, the Executive in each calendar
year in all capacities with PSC, PSW and their Subsidiaries or Affiliates, as
would be reported for Federal income tax purposes on Form W-2 if currently
subject to tax, together with (i) any amounts the payment of which has been
deferred by the Executive under any deferred compensation plan of PSC, PSW and
their Subsidiaries or Affiliates, or otherwise, (ii) any and all salary
reduction authorized amounts under any of the benefit plans or programs of PSC,
PSW and their Subsidiaries or Affiliates, (iii) the value, as shown in PSC's
Proxy, for each calendar year in which a grant was made, of the stock option
grants made to the Executive under the Equity Compensation Plan, but excluding
any amounts attributable to the exercise of stock options, and (iv) the value,
based on the average value of shares vesting in each year, of any grants of
Restricted Stock made to the Executive under the Equity Compensation Plan, for
the three calendar years (or such number of actual full calendar years of
employment, if less than three) immediately preceding the calendar year in which
occurs a Change of Control or the Executive's Termination Date, whichever period
produces the higher amount.
(c) A Person shall be deemed the "Beneficial Owner"
of any securities: (i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of securities tendered pursuant to a tender or exchange offer made by
such Person or any of such Person's Affiliates or Associates until such tendered
securities are accepted for payment, purchase or exchange; (ii) that such Person
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or any of such Person's Affiliates or Associates, directly or indirectly, has
the right to vote or dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange
Act), including without limitation pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided, however, that a Person shall
not be deemed the "Beneficial Owner" of any security under this clause (ii) as a
result of an oral or written agreement, arrangement or understanding to vote
such security if such agreement, arrangement or understanding (A) arises solely
from a revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable provisions
of the General Rules and Regulations under the Exchange Act, and (B) is not then
reportable by such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report); or (iii) that are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or Associate thereof) with
which such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to clause (ii) above) or disposing of any voting
securities of PSC; provided, however, that nothing in this Section 1(c) shall
cause a Person engaged in business as an underwriter of securities to be the
"Beneficial Owner" of any securities acquired through such Person's
participation in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such acquisition.
(d) "Board" shall mean the board of directors of PSC.
(e) "Change of Control" shall mean:
(i) any Person (including any individual,
firm, corporation, partnership or other entity except PSC or the Company or any
employee benefit plan of the PSC or the Company or of any Affiliate or
Associate, any Person or entity organized, appointed or established by PSC or
the Company for or pursuant to the terms of any such employee benefit plan),
together with all Affiliates and Associates of such Person, shall become the
Beneficial Owner in the aggregate of 20% or more of the Common Stock of PSC then
outstanding;
(ii) during any twenty-four month period,
individuals who at the beginning of such period constitute the Board cease for
any reason to constitute a majority thereof, unless the election, or the
nomination for election by PSC's shareholders, of at least seventy-five percent
of the directors who were not directors at the beginning of such period was
approved by a vote of at least seventy-five percent of the directors in office
at the time of such election or nomination who were directors at the beginning
of such period; or
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(iii) there occurs a sale of substantially
all of the assets of PSC or its liquidation is approved by a majority of its
shareholders or PSC is merged into or is merged with an unrelated entity such
that following the merger the shareholders of PSC no longer own more than 51% of
the resultant entity. Notwithstanding anything in this Section 1(e) to the
contrary, a Change of Control shall not be deemed to have taken place under
clause (e)(i) above if (a) such Person becomes the beneficial owner in the
aggregate of 20% or more of the Common Stock of PSC then outstanding as a result
of an inadvertent acquisition by such Person if such Person, as soon as
practicable, divests itself of a sufficient amount of its Common Stock so that
it no longer owns 20% or more of the Common Stock then outstanding, as
determined by the Board of Directors of PSC, or (ii) the shares of Common Stock
required to be counted in order to meet the 20% minimum threshold described
under such clause (i) include any of the shares described in subsections (i)
through (iv) of section 2543(b) of the Pennsylvania Business Corporation Law of
1988 (15 Pa.C.S.A. '2543(b)) as in effect on the date of adoption of the Plan.
(f) "Cause" shall mean 1) misappropriation of funds,
2) habitual insobriety or substance abuse, 3) conviction of a crime involving
moral turpitude, or 4) gross negligence in the performance of duties, which
gross negligence has had a material adverse effect on the business, operations,
assets, properties or financial condition of PSC.
(g) "Equity Compensation Plan" shall mean PSC's 1994
Equity Compensation Plan, and its predecessors and successors.
(h) "Good Reason Termination" shall mean a
Termination of Employment initiated by the Executive upon one or more of the
following occurrences:
(i) any failure of PSC or PSW or their
successor(s) to comply with and satisfy any of the terms of this the Agreement;
(ii) any significant involuntary reduction
of the authority, duties, responsibilities or reporting relationships held by
the Executive immediately prior to the Change of Control;
(iii) any involuntary removal of the
Executive from the employment grade, compensation level or officer positions
which the Executive holds with PSC or PSW or, if the Executive is employed by a
Subsidiary, with a Subsidiary, held by him immediately prior to the Change of
Control, except in connection with promotions to higher office;
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(iv) any involuntary reduction in the
Executive's target level of annual and long-term compensation as in effect
immediately prior to the Change of Control;
(v) any transfer of the Executive, without
his express written consent, to a location which is outside the Bryn Mawr,
Pennsylvania area by more than 50 miles, other than on a temporary basis (less
than 6 months); or
(vi) the Executive being required to
undertake business travel to an extent substantially greater than the
Executive's business travel obligations immediately prior to the Change of
Control.
(i) "Normal Retirement Date" shall mean the first day
of the calendar month coincident with or next following the Executive's 65th
birthday.
(j) "Subsidiary" shall mean any corporation in which
PSC, directly or indirectly, owns at least a 50% interest or an unincorporated
entity of which PSC, directly or indirectly, owns at least 50% of the profits or
capital interests.
(k) "Termination Date" shall mean the date of receipt
of the Notice of Termination described in Section 2 hereof or any later date
specified therein, as the case may be.
(l) "Termination of Employment" shall mean the
termination of the Executive's actual employment relationship with PSC, PSW and
any of their Subsidiaries that actually employs the Executive.
2. Notice of Termination. Any Termination of Employment
following a Change of Control shall be communicated by a Notice of Termination
to the other party hereto given in accordance with Section 14 hereof. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific provision in this Agreement relied upon, (ii)
briefly summarizes the facts and circumstances deemed to provide a basis for the
Executive's Termination of Employment under the provision so indicated, and
(iii) if the Termination Date is other than the date of receipt of such notice,
specifies the Termination Date (which date shall not be more than 15 days after
the giving of such notice).
3. Severance Compensation upon Termination.
(a) Subject to the provisions of Section 11 hereof,
in the event of the Executive's involuntary Termination of Employment for any
reason other than Cause or in the event of a Good Reason Termination, in either
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event within two years after a Change of Control, PSC shall pay to the
Executive, upon the execution of a release in the form required by PSC or PSW of
its terminating executives prior to the Change of Control, within 15 days after
the Termination Date (or as soon as possible thereafter in the event that the
procedures set forth in Section 11(b) hereof cannot be completed within 15
days), an amount in cash equal to two times the Executive's Base Compensation,
subject to required employment taxes and deductions. In the event that PSC does
not satisfy its obligation hereunder within the required time period, PSW shall
pay or cause to be paid all compensation, benefits and other amounts remaining
due to the Executive upon prompt written notice to PSW that PSC has not
satisfied its obligation (or a portion thereof) to the Executive.
(b) In the event the Executive's Normal Retirement
Date would occur prior to 12 months after the Termination Date, the aggregate
cash amount determined as set forth in (a) above shall be reduced by multiplying
it by a fraction, the numerator of which shall be the number of days from the
Termination Date to the Executive's Normal Retirement Date and the denominator
of which shall be 365 days. In the event the Termination Date occurs after the
Executive's Normal Retirement Date, no payments shall be made under this Section
3.
4. Other Payments and Benefits. The payment due under Section
3 hereof shall be in addition to and not in lieu of any payments or benefits due
to the Executive under any other plan, policy or program of PSC or PSW, and
their Subsidiaries or Affiliates. In addition, the Executive shall be entitled
to (i) a continuation of health, dental, life and welfare benefits, excluding
disability benefits, otherwise provided to senior level executives or employees
generally, as the same may be amended for all such individuals from time to
time, for the period of two years, (ii) continued use of the automobile
furnished to the Executive for the lesser of (1) two years after the Termination
Date or (2) the balance of the applicable lease term, if any, in either case to
the same extent as was provided to the Executive in the calendar year
immediately preceding the Change of Control and the ability to purchase such
automobile from PSC or PSW at its book value at the completion of such period,
and (iii) fully-paid executive level outplacement services from the provider of
the Executive's choice for 6 months following the Termination Date.
5. Trust Fund. PSC sponsors an irrevocable trust fund pursuant
to a trust agreement to hold assets to satisfy its obligations to the Executive
under this Agreement. Funding of such trust fund shall be subject to the
discretion of PSC's President, as set forth in the agreement pursuant to which
the fund has been established.
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6. Enforcement.
(a) In the event that PSC (or PSW, as appropriate)
shall fail or refuse to make payment of any amounts due the Executive under
Sections 3 and 4 hereof within the respective time periods provided therein, PSC
shall pay to the Executive, in addition to the payment of any other sums
provided in this Agreement, interest, compounded daily, on any amount remaining
unpaid from the date payment is required under Section 3 or 4, as appropriate,
until paid to the Executive, at the rate from time to time announced by PNC Bank
as its "prime rate" plus 1%, each change in such rate to take effect on the
effective date of the change in such prime rate.
(b) It is the intent of the parties that the
Executive not be required to incur any expenses associated with the enforcement
of his rights under this Agreement by arbitration, litigation or other legal
action because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Executive hereunder. Accordingly, PSC
shall pay the Executive on demand the amount necessary to reimburse the
Executive in full for all reasonable expenses (including all attorneys' fees and
legal expenses) incurred by the Executive in enforcing any of the obligations of
PSC or PSW under this Agreement.
7. No Mitigation. The Executive shall not be required to
mitigate the amount of any payment or benefit provided for in this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for herein be reduced by any compensation earned by other
employment or otherwise.
8. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in or rights
under any benefit, bonus, incentive or other plan or program provided by PSC, or
any of its Subsidiaries or Affiliates, and for which the Executive may qualify.
9. No Set-Off. PSC's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which PSC may have
against the Executive or others.
10. Taxes. Any payment required under this Agreement shall be
subject to all requirements of the law with regard to the withholding of taxes,
filing, making of reports and the like, and PSC shall use its best efforts to
satisfy promptly all such requirements.
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11. Certain Reduction of Payments.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined that any payment or
distribution by PSC to or for the benefit of the Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (a "Payment"), would constitute an "excess parachute payment"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), the aggregate present value of amounts payable or
distributable to or for the benefit of the Executive pursuant to this Agreement
(such payments or distributions pursuant to this Agreement are hereinafter
referred to as "Agreement Payments") shall be reduced (but not below zero) to
the Reduced Amount. The "Reduced Amount" shall be an amount expressed in present
value, which maximizes the aggregate present value of Agreement Payments without
causing any Payment to be subject to the loss of deduction under Section 280G of
the Code. For purposes of this Section 11, present value shall be determined in
accordance with Section 280G(d)(4) of the Code.
(b) All determinations to be made under this Section
11 shall be made by PSC's independent public accountant immediately prior to the
Change of Control (the "Accounting Firm"), which firm shall provide its
determinations and any supporting calculations both to PSC and the Executive
within 10 days of the Termination Date. Any such determination by the Accounting
Firm shall be binding upon PSC and the Executive. The Executive shall then have
the right to determine which of the Agreement Payments shall be eliminated or
reduced in order to produce the Reduced Amount in accordance with the
requirements of this Section. Within five days after this determination, PSC
shall pay (or cause to be paid) or distribute (or cause to be distributed) to or
for the benefit of the Executive such amounts as are then due to the Executive
under this Agreement.
(c) As a result of the uncertainty in the application
of Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments, as the case
may be, will have been made by PSC which should not have been made
("Overpayment") or that additional Agreement Payments which have not been made
by PSC could have been made ("Underpayment"), in each case, consistent with the
calculations required to be made hereunder. Within two years after the
Termination of Employment, the Accounting Firm shall review the determination
made by it pursuant to the preceding paragraph and PSC shall cooperate and
provide all information necessary for such review. In the event that the
Accounting Firm determines that an Overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan to the Executive which
the Executive shall repay to PSC together with interest from the date of payment
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under this Agreement at the applicable Federal rate provided for in Section
7872(f)(2) of the Code (the "Federal Rate"); provided, however, that no amount
shall be payable by the Executive to PSC if and to the extent such payment would
not reduce the limit on the amount that is deductible under Section 280G of the
Code. In the event that the Accounting Firm determines that an Underpayment has
occurred, any such Underpayment shall be promptly paid by PSC to or for the
benefit of the Executive together with interest from the date of payment under
this Agreement at the Federal Rate.
(d) All of the fees and expenses of the Accounting
Firm in performing the determinations referred to in subsections (b) and (c)
above shall be borne solely by PSC. PSC agrees to indemnify and hold harmless
the Accounting Firm of and from any and all claims, damages and expenses
resulting from or relating to its determinations pursuant to subsections (b) and
(c) above, except for claims, damages or expenses resulting from the gross
negligence or willful misconduct of the Accounting Firm.
12. Term of Agreement. The term of this Agreement shall be
indefinite until PSC notifies the Executive in writing that this Agreement will
not be renewed at least sixty days prior to the proposed termination; provided,
however, that (i) after a Change of Control during the term of this Agreement,
this Agreement shall remain in effect until all of the obligations of the
parties hereunder are satisfied or have expired, and (ii) this Agreement shall
terminate if, prior to a Change of Control, the employment of the Executive with
PSC and its Subsidiaries, as the case may be, shall terminate for any reason;
provided, however, that if a Change of Control occurs within 18 months after (a)
the Executive's termination incurred for any reason other than a voluntary
resignation or retirement (a Good Reason Termination shall not be deemed
voluntary) or termination for Cause or (b) the termination of this Agreement,
the Executive shall be entitled to all of the terms and conditions of this
Agreement as if the Executive's termination had occurred on the date of the
Change of Control.
13. Successor Company. PSC shall require any successor or
successors (whether direct or indirect, by purchase, merger or otherwise) to all
or substantially all of the business and/or assets of PSC or PSW, or of any of
their Subsidiaries that actually employ the Executive, by agreement in form and
substance satisfactory to the Executive, to acknowledge expressly that this
Agreement is binding upon and enforceable against the successor or successors,
in accordance with the terms hereof, and to become jointly and severally
obligated with PSC and PSW to perform this Agreement in the same manner and to
the same extent that PSC and PSW would be required to perform if no such
succession or successions had taken place. Failure of PSC or PSW to notify the
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Executive in writing as to such successorship, to provide the Executive the
opportunity to review and agree to the successor's assumption of this Agreement
or to obtain such agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement. As used in this Agreement, PSC and the
Company shall mean PSC and PSW, respectively, and their Subsidiaries as
hereinbefore defined and any such successor or successors to their business
and/or assets, jointly and severally.
14. Notice. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be delivered personally or mailed by registered or
certified mail, return receipt requested, or by overnight express courier
service, as follows:
If to PSC or to PSW, to:
Philadelphia Suburban Corporation
000 X. Xxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Chairman, Executive Compensation
and Employee Benefits Committee
If to the Executive, to:
Xx. Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
or to such other names or addresses as PSC or the Executive, as the case may be,
shall designate by notice to the other party hereto in the manner specified in
this Section; provided, however, that if no such notice is given by PSC
following a Change of Control, notice at the last address of PSC or to any
successor pursuant to Section 13 hereof shall be deemed sufficient for the
purposes hereof. Any such notice shall be deemed delivered and effective when
received in the case of personal delivery, five days after deposit, postage
prepaid, with the U.S. Postal Service in the case of registered or certified
mail, or on the next business day in the case of overnight express courier
service.
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15 Governing Law. This Agreement shall be governed by and
interpreted under the laws of the Commonwealth of Pennsylvania without giving
effect to any conflict of laws provisions.
16. Contents of Agreement, Amendment and Assignment. This
Agreement supersedes all prior agreements, sets forth the entire understanding
between the parties hereto with respect to the subject matter hereof and cannot
be changed, modified, extended or terminated except upon written amendment
approved by PSC's Executive Compensation and Employee Benefits Committee, or its
successor, and signed by the parties hereto. The provisions of this Agreement
may require a variance from the terms and conditions of certain compensation or
bonus plans under circumstances where such plans would not provide for payment
thereof in order to obtain the maximum benefits for the Executive. It is the
specific intention of the parties that the provisions of this Agreement shall
supersede any provisions to the contrary in such plans, and such plans shall be
deemed to have been amended to correspond with this Agreement without further
action by PSC or the Board.
17. No Right to Continued Employment. Nothing in this
Agreement shall be construed as giving the Executive any right to be retained in
the employ of PSC or PSW.
18. Successors and Assigns. All of the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, representatives, successors and assigns of
the parties hereto, except that the duties and responsibilities of PSC and PSW
hereunder shall not be assignable in whole or in part.
19. Severability. If any provision of this Agreement or
application thereof to anyone or under any circumstances shall be determined to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application.
20. Remedies Cumulative; No Waiver. No right conferred upon
the Executive by this Agreement is intended to be exclusive of any other right
or remedy, and each and every such right or remedy shall be cumulative and shall
be in addition to any other right or remedy given hereunder or now or hereafter
existing at law or in equity. No delay or omission by the Executive in
exercising any right, remedy or power hereunder or existing at law or in equity
shall be construed as a waiver thereof.
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21. Miscellaneous. All section headings are for convenience
only. This Agreement may be executed in several counterparts, each of which is
an original. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
22. Arbitration. In the event of any dispute under the
provisions of this Agreement other than a dispute in which the sole relief
sought is an equitable remedy such as an injunction, the parties shall be
required to have the dispute, controversy or claim settled by arbitration in
Bryn Mawr, Pennsylvania, in accordance with the National Rules for the
Settlement of Employment Disputes of the American Arbitration Association,
before one arbitrator who shall be an executive officer or former executive
officer of a publicly traded corporation, selected by the parties. Any award
entered by the arbitrator shall be final, binding and nonappealable and judgment
may be entered thereon by either party in accordance with applicable law in any
court of competent jurisdiction. This arbitration provision shall be
specifically enforceable. The arbitrator shall have no authority to modify any
provision of this Agreement or to award a remedy for a dispute involving this
Agreement other than a benefit specifically provided under or by virtue of the
Agreement. PSC shall be responsible for all of the fees of the American
Arbitration Association and the arbitrator and any expenses relating to the
conduct of the arbitration (including reasonable attorneys' fees and expenses).
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IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, have executed this Agreement as of the date first above written.
ATTEST: PHILADELPHIA SUBURBAN CORPORATION
/s/ Xxxxxxx Xxxxxxx By /s/ Xxx X. Xxxxx
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Secretary
ATTEST: PHILADELPHIA SUBURBAN WATER COMPANY
/s/ Xxxxxxx Xxxxxxx By /s/ Xxx X. Xxxxx
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Secretary
EXECUTIVE
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxx
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Witness
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